Wednesday, May 29, 2013

Tsoukala reviews Kang'ara, "Beyond Bed and Bread"

Over at JOTWELL, Philomila Tsoukala (Georgetown University Law Center) has posted a review that may be of interest. She covers Sylvia Wairimu Kang'ara, "Beyond Bed and Bread: Making the African
State through Marriage Law Reform -- Constitutive and Transformative
Influences of Anglo-American Legal Thought." The article appeared in Volume 9 of the Hastings Race & Poverty Law Journal (2012) and is available online at Comparative L. Rev.Here's an excerpt from Tsoukala's review:

The Article begins by analyzing the central role that the
invalidation of customary marriages in Africa played in colonial
administration. During the initial legal encounter between common law
and African customary laws, judges invalidated large swaths of prior
legal relations. In a (professed) effort to align colonial practices
with English morality, colonial administrations superimposed a classical
legal scheme of thinking about the family and the market at a moment
when most of the African economy depended upon a different household
model. Instead of the separate spheres ideology that characterized
family law of the classical legal tradition, African customary marriages
were based on an economically active household—often composed of
polygamous units engaging in economically important exchanges of
property through marriage, such as the bride-price. Starting from an
assumption that individual free will was the building block for any
civilized legal system, colonial judges invalidated customary marriages
as repugnant to English colonial morality. They looked hard, but did not
seem to find any African subjects capable of becoming “individual
holders of exclusive and absolute rights” in the classical legal
tradition. Critically, customary marriage’s failure to cultivate
subjects that were suitable rightsholders marked the first step toward
property expropriation in the name of empire building.

In this way, Kang’ara shows that, far from being an act with merely
moral significance, “defining marriage was an important act of conquest
and a corner stone of the market oriented state” that emerged via
colonialism.. . .